PLEASE RISE .

PLEASE BE SEATE D .

NEXT CASE ON T HE COU RT 'S DOCKET IS M ANSFIELD VERSUS STATE OF FLORIDA. ARE THE PARTIES READY?

YES, YOUR H ONOR.

YOU MAY PROCEED.

MAY IT P LEAS E T HE C OURT , MY NAME I S J IM D RISC OL L ALONG WITH D AV ID B AS S WE A RE HERE O N B EHAL F O F S COTT M AN SFIELD. WE ARE HERE BECAUSE THE PROSECUTION OF SCOTT MANSFIELD HAD N ONE O F T HE RELIABILITY THAT IS CRIMINAL -- A CRI MINAL CASE , LET ALONE ONE IN WHICH THE STA TE IS SEEKING D EATH S HOULD HAVE. MR. MANSFIELD DID NOT HAVETHE ASSISTANCE OF E FFEC TI VE ASSISTANCE OF COUNSEL, THERE WASN'T A PROPE RL Y S ELEC TE D JURY, T AINTED A ND I LL EG AL E VIDENCE W AS ADM IT TE D AGAINST MR. MANSF IE LD A ND KEY D EC IS IONM AKERS IN T HIS CASE. THE TRIAL COU RT, THE JURY AND THIS COURT IN MAKING A DECISION THAT CERTAIN EVIDENCE WAS HARM LESS , O N DIRECT APPEAL , W ER E DEN IE D I MPORTANT FACTS.

THOSE ARE A LOT O F I SS UE S AND YOU HAVE A LOT OF I SS UES. ARE YOU GOING TO C ONCENT RA TE ON S EV ERAL S PECI FI C POI NT S IN Y OU R BRI EF ?

YES, YOUR HONOR. I WOULD JUS T - - I W OULD BEGIN WITH W HA T'S R EALLY T HE ESSENCE OF OUR CRI MI NAL JUSTICE SYSTEM , A ND T HA T , I N FAC T, IS T HE R IGHT T O A F AI R TRIBUNAL AND I BELIEVE W E QUOTED AT LENGTH IN O UR BRIEF.

WHICH ISSUE IS THAT?

THAT WOULD BE ARGUMENT 1 , AND THAT WAS RAI SE D I N P OS T CONVICTION AS A C LA IM 1 4 , I BELIEVE.

THIS IS THE QUEST ION O F WHETHER J UD GE PER RY SHO UL D HAVE BEEN RECUSED B AS ED O N C OMMENTS THAT HE MADE ABOUT THE POSSIBLE PLE A BAR GA IN ?

BUT IT WAS RAI SE D O N POS T CONVICTION AS A LS O A N INEFFECTIVE ASSISTANCE O F COUNSEL CLAIM.

LET'S GET TO WHA T T HE ISSUE FIRST OF ALL I S T HA T YOU ARE RAI SI NG I T T HA T T HE ATTORNEY IN D IR EC T A PPEAL SHOULD HAVE MOVED TO R EACCUSE JUDGE PERRY F RO M THE S ENTE NC IN G P HASE O F T HI S CASE?

OF THE T RI AL COUNSEL. NOT ON THE DIRECT APPEA L. WE HAVE A CLAIM I N O UR H ABEAS PET ITIO N TO T HE EXTENT THAT THIS COURT FINDS THAT IT COULD HAVE BEEN RAISED O N D IR EC T A PP EA L , APPELLATE COUNSEL SHOULD HAVE RAISED THAT ON DIRECT APPEAL , B UT O UR ORI GINA L CLAIM IN POS T C ON VI CTION WAS THAT T RIAL C OUNSEL W AS I NEFF ECTIVE AFTER T HE C OU RT MADE THESE COMMENTS F OR N OT MOVING TO D ISQUAL IF Y T HA T JUDGE AT A POI NT I N T IM E WHERE THE JUDGE HAD YET TO HEAR THE J URY' S RECOMMENDATION AND H AD YET T O H EA R E VIDENCE T HA T WOU LD BE PRESE NT ED A T - - HER E.

WELL , SET THE CON TE XT FOR US AND GO AHEAD W ITH YOU R ISSUE.

IT BEGAN A T SOME P OINT WHILE THE J URY WAS D EL IBERATING ON WHAT THE RECOMMENDATION WOULD BE . THERE WAS AN OFFER O F LIF E MADE BY T HE S TATE W IT H S OM E CONDITIONS, AND C OU NSEL W AS DISCUSSING THAT WITH MR. MANSF IELD AND IT W AS BROUGHT TO THE A TTEN TI ON O F THE COURT, A ND W HAT FOL LOWE D WAS C OMMENTS B Y T HE C OU RT WHICH SHOULD HAVE G IV EN A NY R EASONABLE P RA CTIT IONER CONCERN, NOT JUST T HA T MR. MANSFIELD WAS GOING TO RECEIVE A FAI R A ND I MPAR TI AL SPENCER HEARING OR FAI R AND IMPARTIAL PENALTY PHASE BUT, IN FACT, WHETHER HE HAD RECEIVED ANYTHING T HROUGHOUT THIS TRIAL THAT WAS FAIR A ND THESE COMMENTS ARE SUCH A NATURE --

WHAT DID H E SAY SPECIFICALLY THAT WOULD HAVE MADE ONE BELIEVE HE DID N OT RECEIVE A FAIR TRIAL UP TO THAT POINT?

SPECIFICALLY, YO UR HONOR , T HE COURT MAD E - - S HOWE D %% --ppWITH THE COURT'S S TA TEMENT S THAT, I N FACT , IT PRE SUME D OR I T ALW AY S BEL IEVE D WHEN %%-- ppTHE STATE OF FLORIDA BROUGHTA CASE THEY DIDN'T HAVE A NY P ROOF PROBL EM S. AND IN A CAS E , I N A CRI MI NA L CASE, E VE N T O A CER TAIN EXTENT O N W HE THER T HE D EA TH PENALTY IS APPROPRIATE, T HE ONLY PRESUMPTION - -

WAS T HAT A C OMME NT T HA T ACTUALLY WENT TO THE NATURE OF THE CASE OR D ID I T H AV E MORE TO DO W IT H THI S W HOLE NOTION OF THE APPEAL A ND WAIVING THE RIGHT TO APP EAL?

YOUR HONOR , W E B EL IE VE WHILE THE STA TE MENT S SPEAK FOR THEMSELVES , W HA T I T W AS IN REFERENCE TO WAS WHE N T HE STATE OF FLORIDA A ND BRI NG S A CASE, THEY M AK E A NN AL S IS THAT THERE AREN'T A NY PRO OF PRO BLEMS. IN A CRIMINAL C ASE T HE S TATEOF FLORIDA A LW AYS HAS PRO OF P ROBLEMS BECAUSE THEY HAVE THE BURDEN OF PROVING THE CASE BEYOND AND TO THE EXCLUSION OF --

M R. D RISCOL L , B UT YOU 'V E GOT -- DON'T WE H AV E T O L OO K AT THIS I N T HE C ONTEXT O F HOW T HIS W AS U NFOL DI NG A T T HE TIME OF THI S TRIAL , A ND T HAT W HA T W E HAD WAS T HA T THE GUILT PHA SE H AD B EEN C ONCLUDED OF THIS T RIAL , CORRECT?

YES, YOUR HONOR . > > AND , I N F AC T , THE PEN AL TY PHASE HAD BEE N P RE SE NTED TO THE JURY AND THE JURY WAS OUT DEL IBERATING?

THAT'S CORRECT.

AND THEN T HE RE W ER E T HESE N EGOTIATIONS APP AR EN TLY O R %% --ppDISCUSSIONS B ET WEEN T HE STATE AND THE DEF EN SE C OUNSEL , A ND T HE N T HE Y TOO K THAT I NFOR MA TI ON I N B EF OR E JUDGE PERRY , A ND T HA T WAS THE C ON TEXT I N W HI CH THE DISCUSSION CAME U P , CORRE CT ?

THAT IS CORRECT , YOUR HONOR.

A ND S O I SN 'T I T J US T A FAIR INTER PR ETATION O F W HA T WAS THEN GOING ON , WAS T HA T THE J UDGE W AS SAYIN G , Y OU K NOW, THE S TA TE HAS MAD E A D ETERMINATION TO A SK THI S %% --ppJURY T O S EN TE NC E T HI S DEFENDANT TO DEATH, W HICH I S AN A WESO ME DEC IS IO N O N THE PART OF T HE S TA TE T O M AK E THAT DEC ISIO N , AND S O THA T' S %% --ppTHE CONTE XT T HAT I L OOK A T THIS I N , AND I SN 'T T HA T B ASICALLY WHAT WAS B EI NG SAID?

YOUR HONOR , I B ELIE VE THAT'S ONE OF THE THINGS THAT WAS BEING S AI D , BUT I T W AS ALSO SAY IN G AT A TIM E W HERE T HE J URY H AD N' T SPO KE N AND THE E VI DE NC E , M EN TA L H EALTH EVIDENCE HADN'T BEEN PRESENTED AT A SPE NC ER HEARING, IT WAS ALS O I N THA T CON TEXT, H ER E'S THE C OURT %% --ppBECOMING, AND I B EL IEVE A FAIR READING OF THIS I S I RATE OR ANGRY O VER THE F AC T THAT M R. MAN SF IELD A T T HI S POINT MAY NOT R EC EIVE THE DEA TH PENALTY.

BUT YOU'RE LOOKING AT T HE COLD RECORD AND WHAT YOU HAVE A CT UALLY T OL D U S I S THAT WE A RE L OOKI NG A T T HI S OR MUST LOO K A T I T A S A N I NEFFECTIVE A SSISTANCE CLAIM SO FIRST YOU'VE GOT TO PROVE THAT NO R EASO NA BL E LAWYE R WOULD EVER H AVE FAI LE D T O IMMEDIATELY MOVE T O H AV E R ECUSED J UDGE P ER RY B ASED O N THE STATEMENTS THAT HE M AD E WHICH A S JUSTICE W EL LS POI NTED OUT, WER E MADE IN THE C ONTEXT, T HE V ER Y SPECIFIC CONTEXT OF THE ISSUE OF THE P LE A B ARGAIN . SECOND OF ALL, AND I THINK THIS IS A G RE ATER H UR DLE FO R YOU , BEC AUSE I T I S O N POS T CONVICTION OUR CASE LAW SAYS THAT YOU M US T S HO W A CTUA L BIAS, A ND WHE RE , OT HE R THA N THIS COM MENT W HICH IS S USCEPTIBLE TO AT LEA ST A N %% --ppINTERPRETATION AS GIVEN BY JUSTICE WELLS , DO YOU HAV E EVIDENCE THAT JUDGE PER RY WAS ACTUALL Y BIA SE D I N THE ADJUDICATION OF THE DEATH CASE?

YOUR HONOR, I MEAN , W E %% --ppBELIEVE THROUGH J US T T HE STATEMENTS ALONE THAT IT SHOWS THAT BUT WE WANTED TO BRING THAT EVIDENCE, WHETHER IT WAS BEFOR E A F AI R %% --ppTRIBUNAL IN P OST CONVICTION OR BEFORE THIS COURT , BUT THE COURT DENIE D O UR M OT IO N TO DISQUAL IF Y SO THA T W E COULD, IN FACT , C ALL J UDGE PERRY AS A WITNESS.

DO YOU H AV E O TH ER EVIDENCE THA T H E W AS ACTUALLY B IASE D?

WELL , YOU W OU LD H AVE T O LOOK AT THE CASE. AS A W HOLE T HIS I S A C AS E , IN FACT, WHERE M R. M AN SF IE LD %% --ppRAISED AN I SSUE A BO UT THE ILLEGAL INT ERRO GATION AND THIS COURT FOUND THAT WAS I N ERROR WHILE HARMLESS , B UT THAT WAS DENIED. O VERALL, HOW THE CAS E W AS HANDLED, WE WOULD HAV E L IK ED TO HAVE THAT EVIDENCE TO BRING IT HERE AND W E BELIE VE WE COULD HAVE GOT TEN T HA T THROUGH CROSS-EXAMINATION AS WE WOULD W ITH THE WITNESS.

BUT YOU AGREE T HA T ACT UA L BIAS IS THE H IGHE R THR ES HO LD T HAN WHAT WOULD H AVE H AD T O BE SHOWN TO O RIGI NA L I F A MOTION TO R EACCUS ED BEE N MADE AT T HE TIM E O F THE - - AT T HE T IM E THE S TA TEMENTS WERE MADE?

AT THE T IME THE STATEMENTS WERE MADE --

DO Y OU AGREE W ITH THAT , THAT'S IT I S A D IFFE RENT STANDARD?

FOR R ECUS AL I N A POS T C ONVICTION S ETTING , Y ES .

F OR INE FF EC TIVE ASSIS TANCE YOU HAVE TO SHO W THERE WAS A CT UA L B IA S B EF OR E THERE CAN BE PREJUDICE?

YOUR HONOR, I BELIE VE W E WOULD HAVE TO SHOW THAT, I N FACT, THE COU NS EL W AS N OT MEETING WHAT THE SIXTH AMENDMENT DEMANDS.

THAT'S THE FIRST PRONG. AND THE SECOND THERE H AS TO BE A SHOWING O F A CT UAL BIAS.

WELL , T HE P RE JUDICE WAS %%-- ppMR. MANSFIELD WAS DENIE D A %% --ppFAIR T RIBU NA L THR OUGH OU T T HE PROCE EDINGS.

ANOTHER WAY OF S AYIN G I T IS YOU WOULD HAVE T O SHO W ACTUAL B IA S? %%-- pp

YES, YOUR HONOR.

WOULD YOU R ES TA TE? I'M STILL NOT S URE THA T I U NDERSTAND THE CON TE XT HER E. DID DEFENSE C OUNSEL AND T HE PROSECUTOR A SK T O S PE AK T O THE COURT AND THE N T O T EL L -- ADVISE THE COU RT O F THE STATE OF NEGOTIA TI ON S O R JUST EXACTLY HOW W AS T HI S PRESENTED TO THE COURT I N TERMS OF THIS T HE N PRO MP TING %% --ppTHE RESPONSE THAT J UD GE PERRY HAD?

I B ELIEVE IT C AME U P I N THE CONTEXT O F WHE THER I T WOULD H AV E WIT HI N PR OPER FOR T HE STATE T O - - FOR %% --ppMR. MANSFIELD TO R EC EIVE A LIFE SENTENCE AT THAT P OI NT AND IT WAS COU NSEL 'S IMONY AT THE POST CONVICTION HEARING THAT , I N %% --ppFACT , I T W AS J US T T O B UY SOME MORE T IM E F OR MR. MANSFIELD TO DECIDE TO TAKE THIS.

DEFENSE COUNSEL W AN TE D THE O PP ORTUNI TY T O H AV E THE J UDGE I NF OR MED OF T HI S P LE A NEGOTIATION?

YES. WELL, THE O THER T HING THAT HAD TAKEN PLACE W HE N THI S WAS ON THE TABLE I BEL IEVE THEY WOULD HAVE HAD T O A SK PERMISSION OF THE COURT FOR FAMILY MEMBERS OF %% -- ppMR. MANSFIELD COULD SPEAK TO HIM ABOUT THI S - - THE OFFER THAT WAS ON THE T AB LE.

SO W AS T HERE A R EQUE ST FOR THERE TO BE A R ECES S O R J UST FOR A CER TAIN SPECI FIC AMOUNT OF T IM E F OR T HI S OFF ER TO BE CONSI DE RED A ND WAS IT C LEAR T HA T T HE O FFER WAS MADE?

THE O FFER , FRO M T HE RECORD AND WE H AD A CLA IM REGARDING THAT, BUT THE OFFER WAS M AD E THA T THE PARTI CULARS I DON'T K NOW ARE NECESSARILY H ERE , B UT %%-- ppMR. MANSFIELD WAS TO ENTER A PLEA OF GUILTY , W AI VE HIS APPEALS , A ND R ET UR N F OR A L IFE SENTENCE.

SO T HAT'S P ART OF IT. THE OFFER WAS MADE FROM THE STATE.

THE STATED MADE T HE OFFER.

SO WHA T W AS B EING A SKED OF THE C OU RT?

THE C OURT, I B EL IE VE , T HAT T HE COURT , THE A TTORNEYS INFORMED THE C OU RT ABOUT WHAT WAS GOI NG O N , A ND THEY ALSO , I BELIEVE , JUS T TO HAVE PERMISSIO N , F OR T HE FAMILY MEMBERS T O COM E S INCE M R. MANSFIELD WAS %%-- ppINCARCERATED AT THE T IME TO SPEAK WITH HIM, AND JUST APPRISE THE COURT OF WHAT WAS GOING ON.

AND W AS T HE P LEA T HE N W ITHDRAWN?

THE PLEA W AS WIT HD RA WN .

THE OFFER?

THE OFF ER W AS W IT HD RA WN . T HERE W AS SOM E D EBAT IN G B AC K AND FORTH OVE R W HE THER , I N FACT, THIS COULD B E D ON E A T THAT TIME. %% --pp

C LA RIFY F OR M E A T W HA T POINT HAD THE GUILT Y VERDI CT ALREADY BEEN MADE , THE G UI LT PHASE?

THE GUILTY VERDICT H AD BEEN RETURNED.

SO IT WAS T HE P ENALTY PHASE. THE JUR Y W AS O UT I N THE %% --ppPENALTY PHASE?

AND IF THEY REC OM ME NDED LIFE ALL M R. MANSF IE LD C OULD RECEIVE WAS LIFE.

AND BASED ON THE V ERDICT ALL HE COULD HAVE R EC EIVED WAS LIFE UNLESS THE Y RECOMMENDED DEATH?

IF THEY R EC OM MENDED D EA THAND THEN WE WOULD MOVE ON TO THE SPENCER HEARING.

SO W HAT WAS THE MOTIVATION EXPRESSED TO THE TRIAL COURT A S TO WHY THE STATE WAS NOW G OING T O T AK E IT A WA Y F ROM T HE J UR Y AND MAKE THAT R EC OM MEND ATION?

I BELIEVE THAT T HE S TATE WOULD HAVE THEIR P OS IT IO N. T HERE WAS TALK A BOUT H E W AS WAIVING AN APPEAL, WHETHER IT WOULD HAVE P RE VE NTED THIS. POST CONVICTION I'M U NC LEAR OF, BUT THE Y H AD THEIR %% --ppPOSITION AND IT WAS S O T HA T %%-- ppMR. MANSFIELD WOULD WAIVE HIS A PPEAL.

WELL, WHEN WAS T HE O FF ER WITHDRAWN BY THE STATE?

WHILE THI S W AS - - A FT ER THE COU RT MAD E T HESE STATEMENTS WHICH WE FOUND S O -- WE W ERE S O C RITICA L O F %%-- ppTHEN THERE WAS BAC K AND FORTH AND THE Y SAID , FIN E , WE WILL REMOVE THA T OFF ER.

BACK A ND FORTH BET WE EN - - I'M SORRY. THE BACK AND FORTH WAS BETWEEN THE STATE AND THE DEFENDANT, NOT T HE STA TE AND THE COURT?

THE COURT - - THE C OU RT WAS, I THI NK , B Y READI NG WHAT O CCURRED WIT H THE SE STATEMENTS WAS APP AR ENTL Y VERY UPSET WITH THE S TATE , TOO , AND - - %% --pp

BUT THE F AK A ND F OR TH Y OU WERE TALKING ABOUT WAS BETWEEN WHO?

WAS BET WE EN T HE S TATE AND %% --ppTHE COURT AND T HEN T HERE WAS SOME DEB ATE O R G OI NG B ACK AND FORTH B ETWEEN ALL O F T HE PARTIES O VER WHETHER AFTER THE JURY HAD RETURNED T HE %% --ppGUILTY VERDICT, WHETHER, IN FACT, A LIFE S EN TE NCE C OULD BE IMP OSED . %% --pp

YOU ARE NOT C ON TEND IN G A S PART OF THE P REJUDI CE THA T MR. MANSFIELD WAS D EP RIVE D OF THE OPP ORTU NITY T O P LEAD T O LIFE , WIT H Y OU ? BECAUSE I DIDN'T SEE THAT A S BEING PART OF GET TING INT O THIS ISSUE ABOUT WHEN THE PLEA WAS WIT HD RA WN , B UT I DIDN'T UNDERSTAND THAT TO BE PART OF YOUR A RGUMENT.

URPS , THA T W AS O NE - - YOUR HONOR, THAT WAS ONE OF THE CLAIMS. THERE WAS A CONFLICT IN EVIDENCE AT THE POST CON VICTION HEARING ON WHETHER MR. M AN SF IELD H AD , IN FACT, DPRED TO TAKE THE PLEA O R NOT A ND W E DID N' T PROCEED ON APPEAL ON THAT.

ALL RIGHT. SO THAT'S T HE NON ISSU E AS FAR AS WHE THER T HE P REJUDI CE IF JU DGE PERRY W AS W RO NG I N WHAT HE SAI D , THA T I S T HERE %%-- ppWASN'T A NY B AR T O A P LE A %% --ppBEING ENTERED A T THA T S TAGE , THAT SOM EH OW H IS C OM MENT S THWARTED A PLE A AGREEME NT FROM BEING REACHED?

WE ARE NOT A RG UING THA T BUT ALSO WE ASK THAT THI S COURT TAKE A LOOK AT THE ENTIRE CASE AS Y OU D O , AND CONSIDE R ALL OF THE INE FFECTIVENESS THAT MR. MANSFIELD SUFFERED F RO M , A ND A V ER Y I MP ORTANT I SS UETHAT AROSE IN THIS C ASE , JUST IN F ACT HOW THAT J URY WAS DENIE D VER Y I MPORTA NT FACTS.

JUST BACK TO THE FIRST POINT , WOU LD YOU , YOU K NO W , T HE IDEA T HA T A N ATT OR NE Y I N THE MIDDLE OF NEGOT IATI ONS HEARS A C OMMENT FROM THE JUDGE, YOU SEE T HA T C OM MENT ON THE COLD RECORD , T HE ATTORNEY IS THERE , A ND E VALUATES WHE THER A LL ALONG , BASED ON HOW THE JUDGE H AS BEEN H AN DL IN G HIM SE LF O R HERSELF, THAT THE JUD GE CAN BE FAIR A ND I MPAR TI AL , I SN 'T THERE T HA T SUP ER IO R VAN TAGE POINT AS T O THA T ISS UE ? THA T I S T HAT JUS T THE F ACT THAT YOU LOOK AT A C OL D RECORD AND SAY THE SE COMMENTS SHOULD B E INDICATIVE O F P AR TI AL T I O R , YOU KNO W , I NA BILI TY T O B E F AIR, THAT THE T RI AL ATTORNEY IS T HE RE AND ABL E TO SEE T HA T I T I S B EING MAD E IN THE C ON CE PT - - C ON TEXT O F , YOU KNOW, T HAT IS N OT O UT O F THE BLU E BUT IN R ESPONS E T O SOMETHING THAT IS BEING DISCUSSED.

WELL, IT W AS JUS T O N THE %% --ppC OLD RECORD, I T W AS A PP ARENT THAT COUNSEL SHOULD HAVE MOVED TO D ISQU AL IF Y THE COURT , BECAU SE THE RE W AS STILL A SPE NCER HEARING T O HAPPEN.

BUT IS ONE O F Y OU R CLA IM S HERE THAT FOR THAT R EASO N JUDGE PERRY THEN SHO ULD H AV E BEEN RECUSED A ND T HE RE H AV E BEEN AN EVI DE NTIA RY HEARI NG ON THAT CLAIM A ND O NE W AS N' T HAD?

THERE W AS A N E VIDE NTIA RY HEARING.WE WERE GRANTED AN EVIDENTIARY HEARING.

ON THIS CLAIM?

WE WERE U NABL E T O CAL L JUDGE P ERRY BEC AUSE , I N F AC T , HE WAS PRESIDING OVE R T HIS.

DID THE LAWYER IFY?

THE L AWYER T ESTI FIED.

WHAT DID THE LAWYE R SAY?

THE LAWYE R SAI D THA T S HE SAW NO REASON T O DIS QU ALIF Y %%-- ppTHE COURT.

JUST WHAT I A M SAY IN G I S WHAT THE LAWYER S AI D I S T HE CONTEXT OF THE WAY H E SAI D IT DID NOT GIVE HER A NY CONCERN ABOUT HIS ABI LI TY T O BE FAI R A ND I MP ARTI AL , CORRECT?

THAT WAS JUS T THE E XTENT OF HER COMMENTS. I THINK I T COULD O NLY GET WORSE WHEN IT IS C ONSIDE RE D THAT THE JUDGE, I N F AC T , THIS IS THE COLD R EC ORD. THE JUDGE FROM T HIS WOU LD APPEAR TO B E VER Y U PS ET A ND ANGRY AT THIS P OINT , S O I T HINK T HE C OL D R EC ORD I S MOST FAVORABLE TO TRI AL COUNSEL.

YOU HAVE MANY O THER POINTS BUT YOU HAVE T HE BRIEF.WOULD YOU LIK E TO RESERVE THE REST OF YOUR T IME F OR REBUTTAL?

I WOULD LIK E TO R ESER VE THE REST OF M Y T IM E FOR REBUTTAL.

MR. AKE?

MY NAM E IS STEP HEN AKE AND I R EPRESENT T HE STATE OF FLORIDA IN THIS CASE. T HE S TATE W OULD SUB MI T T HA T THE TRIAL COU RT R IGHT LY MAD E THE RIGHT D ECISION O N T HE SE COMMENTS WE HAVE BEEN TALKING ABOUT.

HOW CAN THE JUDGE WHO MADE THE COMMENTS PRE SIDE OVER THE CLAIM AS TO WHETHER THE COM ME NT S T HEMSELVES RIS E TO THE L EV EL O R T HE A CTIO N OF THE ATTOR NE Y N OT R ECUSIN G THE J UDGE?

COUNSEL R AIDSES I T , I T I S KIND OF A T WO-FOL D I SSUE H ERE AND THE FIRST ISS UE I S HE FIRST MADE A MOTION T O DIS QUALIFY THE JUDGE FROM HEARING THE EVIDENTIARY HEARING AND THAT JUDGE, JUDGE P ERRY, D ENIE D T HAT MOTION. HE TOOK A W RIT UP TO THI S COURT.

IS THAT A TIM EL IN ES S ISSUE THERE? IN OTHER WORDS , T HAT SIN CE THE C OMMENTS H AD B EE N MAD E THAT THEY DID NOT T IMEL Y MOVE?

CERTAINLY T HAT'S PART O F %% --ppHIS RULING WAS THAT I T WAS UNTIMELY. HIS RULING WAS IT W AS L EGALLY INS UF FI CI EN T BUT PART OF THA T HAS TO BE THE TIMING. YOU CAN 'T COM E B AC K F OU R YEARS LATER AND SAY O. TH EY WERE OBVIOUSLY A WA RE O F THE COMMENTS FROM 1 99 8 A ND T HE Y DON'T EVEN RAISE IT UNT IL 2 002.

BUT I GUE SS M Y Q UESTION IS: IF H E W AS G RANT ED A N %%-- ppEVIDENTIARY HEARING ON T HI S POINT.

RIGHT.

HOW CAN T HE JUDGE , W HO MAD E THE COM MENT S , PRE SI DE OVER WHE THER THE COM MENT S WERE SUC H T HAT --

T HAT'S NOT W HA T H E I S MAKING A RULING ON IN A N EFFECTIVE CLAIM. ALL HE IS RULING ON IS WHETHER REASONABLE COUNSELWOULD HAVE BEEN -- HE IS NOT MAKING A RULING O N THE MERITS LIKE I KNOW THIS COURT HAS A PROBLEM W IT H TRIAL JUDGE S ARE NOT A LL OW ED TO DISCUSS THE MERITS OF THE MOTION TO DIS QU ALIFY WHE N IT WAS MADE BUT IN THE EVIDENTIARY HEARING HE WAS SIMPLY RULING ON THE INEFFECTIVE A SSISTANCE OF COUNSEL CLAIM.

HOW COULD HE SEP ARATE THAT OUT? THAT IS , I F , F OR I NSTA NC E , IF HE SAYS , WEL L , I K NO W I WASN'T ANGRY , A ND THA T I DIDN'T -- I W AS N'T U PS ET W ITH THEM N OW M AKING A D EA L AFTER EVERYTHING HAD BEEN DONE OR WHA TEVE R , A ND S O I THI NK I T HINK I T I S P ER FECT LY REASONABLE FOR THE D EFEN SE COUNSEL THAT I FI ED T O SAY THAT S HE D IDN' T P ERCE IV E THERE WAS ANY P RO BLEM, Y OU KNOW, AND D ID N'T F IL E A MOTION TO REACCUS E A S O PP OS E -- R EC US E A S O PP OSED T O %% --ppA NOTHER JUDGE LISTENING T O THIS AND SAYING , W EL L , I MAY NOT AGREE WITH DEFENSE COUNSEL'S DECISION, NOT TO MOVE TO REC US E BEC AU SE A S I READ, YOU KNOW , WHA T W AS SAID HERE, BOY, I T AK E I T THAT THE JUD GE WAS S AY ING , MY GOSH, YOU M EA N , W E S AT THROUGH T HIS WHOLE T RIAL AND THE STATE ASKED FOR THE DEATH PENALTY AND NOW IT I S CHANGING ITS MIND AND GIVIN G THIS FELLOW A DEA L I N T HE %% --ppFACE OF ALL OF THI S EVIDENCE? AND I W AS ANG RY OR I , Y OU KNOW, T HE O THER JUDGE %% -- ppFORESEES THAT HE WAS A NGRY AND THAT THERE MAY B E A N ISS UE THERE.

ALL OF THAT S TUFF I S A LL TIED TOGETHER?

I DON'T THINK IT I S INHERENT IN T HI S J UD GE'S RULING ON THE I NE FF ECTI VE CLAIM TO PASS ON THE M ER ITS. %%-- pp

I T HINK, A GA IN, Y OU ARE MIXING TWO THINGS U P . WHETHER THE S TA TE HAS A MOTION TO R EC US E , THE J UD GE DOESN'T EVALU ATE T HE MERIT S. BUT WHEN IT IS AN INEFFECTIVE ASSISTANCE CLAIMS ONE OF THE T HINGS THA T HAS TO BE EST ABLISHED IS THAT, WELL , E IT HE R , T HE COUNSEL WAS IN EF FECT IV E I N N OT MOV IN G T O R ECUS AL A ND SECOND THERE IS ACTUA L BIA S AND HOW D OE S THE JUD GE WHO IS THE JUDGE WHO IS THE OBJECT OF T HI S MAK E A D ETERMINATION THAT T HERE W AS NO BIA S O R T HA T S OMEB OD Y W ASN'T EFF ECTI VE I N N OT MOVING F OR R EC USAL B AS ED ON C OMMENTS HE MADE? I'M HAV ING A HARD TIME W ITH HAVING SOM EO NE E VA LU AT E T HAT SINCE THEY ARE A PLAYER IN IT.

RIGHT, AND O BV IOUS LY H E WOULD I GUESS IN SOME S EN SE HAVE TO DO THAT.

NOT IN S OME SEN SE, IN EVERY SENSE.

BECAUSE HE COULD DEN Y IT ON JUST THE F IR ST P RO NG WITHOUT EVEN GETTING TO THAT. HE COULD DENY IT ON DEFICIENT PERFORMANCE.

BUT THE DEFICIE NT %% --ppPERFO RMANCE DEPENDS, I GUE SS WE COULD LOOK AT T HIS C OL D RECORD AND SAY EVEN O N THI S COLD RECORD I T IS NOT LEGALLY SUFFICIENT AND SO IF WE AGREE WITH Y OU O N THA T I T %%-- ppPROBABLY DOESN'T GO ANY FURTHER.IN OTHER WORDS, EVEN IF SOMEBODY HAD M OV ED T O R EC US E AT THE TIME THERE IS N O BASIS A ND THAT'S PRO BA BLY WHERE YOU W OULD RATHER WE G O ON THIS.

CORRECT. AND THAT'S PART AND P AR CEL OF IT IS T HA T I N T HE ANALYZING INEFF ECTIVE ASSISTANCE EVEN HAD C OUNS EL RAISED THIS AT T HE T IM E THA T THE C OMMENTS HAPPENED T HE JUDGE WOULDN'T HAVE GRANTED IT.

BUT YOU WOULD R ATHER STILL -- I F W E S TA Y I T T HE RE %% --ppWE DON'T HAVE TO G O TO THE NEXT LEVEL.

AND THIS COURT H AS DON E THIS IN OTHER C AS ES . ASAY COMES TO M IN D AND T HE S AME PROCEDURE TOOK PLACE. THE SAME JUDGE D ENIED IT AND FOUND THAT IT W AS , YOU KNO W , NOT INE FF EC TIVE ASSIS TA NCE BECAUSE IT WAS INS UFFI CI EN T. SO IT HAS B EE N D ON E B EFORE AND AS I MENTIONED B RIEFLY THIS COURT, THEY BROUGHT IT UP TO THI S C OURT O N A W RI T OF P ROHI BITI ON.

WE DIDN' T D EN Y I T O N T HE MERITS.

NO, BUT YOU STI LL S EN T I T BACK TO JUDGE P ERRY .

BUT Y OU A GR EE I F W E G OT PAST THAT AND SAI D T HOSE A RE COMMENTS THAT COULD BE CONSTRUED TO PERHAPS INDICATE LACK OF IMP AR TIAL IT Y THEN THERE MIGHT BE PROBLEMS.

I STILL DON'T THINK YOUWILL EVER G ET TO THAT PHASE BUT EVEN IF YOU DID I STILL DON'T THINK THERE ARE ANY PROBLEMS WITH T HIS JUDGE RULING ON THAT.

LET ME ASK YOU THIS : I N O RDER TO D ET ERMINE WHETHER THE JUDGE SHOULD H AV E S AT ON THE INE FF ECTIVE A SS IS TA NCE OF COUNSEL CLAIM WE HAVE T O HOLD THAT THERE WAS A TIM EL Y MOTION TO D IS QUALIF Y THE JUDGE AT T HE POS T C ON VI CTIO N HEARING, CORRECT?

AS TO THE I N EF FE CTIV E A SSISTANCE OF COU NSEL C LAIM?

IN ORDER TO REACH THA T ISSUE OF WHETHER THE J UD GE SHOULD HAVE SAT O N T HE POS T CONVICTION HEARING, WE F IRST HAVE TO DETERMINE THAT THE RE WAS A TIMELY M OT ION T O D ISQUALIFY HIM FROM SITTING IN THAT HEARING, C ORRECT?

BUT THEY DID R AI SE T HAT MOTION IN POST CONVICTION , RIGHT.

YES, BUT WAS IT A T IMEL Y MOTION?

RIGHT, A ND IT WAS D ENIED.

SO IF WE HOL D I T W AS NOT A TIMEL Y MOTION WE D ON'T GET TO THE ISSUE OF WHETHER H E SHOULD HAVE SAT BECAUSE THERE IS NO T IM ELY MOT IO N T O REACCUSE HIM F RO M - - REC US E HIM FROM S ITTI NG?

HE I S BRINGIN G I T UP I N TWO PRONGS , H E I S ALS O BRINGING IT UP THA T TRI AL COUNSEL W AS I NEFFEC TIVE F OR NOT B RINGING IT UP. HE IS TAKING THREE B IT ES O F THE APPLE.

BUT THE ABILITY OF THE JUDGE TO SIT AS W HE TH ER HE IS PARTIAL OR IMPARTIAL I N SITTING C AN'T B E RAISE D IF T HE MOTION WAS N OT BROUGHT IN A TIM EL Y W AY T O R ECUS E HIM ON T HI S CON VI CTION.

RIGHT. I THINK I UNDER STAND WHAT YOU ARE S AYING , YES, I T HINK THAT'S CORRECT . > > I T SOU NDED L IKE A FRIENDLY QUESTION, RIGHT?

I THINK SO. YOU H AD M E C ONFUSE D. I MUST SAY . > > WOULD YOU R ESET THE TABLE FOR US AS FAR AS WHAT W ENT ON?

AS FAR AS DOWN BELOW W HAT WENT ON IS AS W E D IS CUSSED THE GUILT PHA SE WAS OVER. HE WAS A DJ UD IC AT ED , FINGERP RINTED OR W HAT HAVE YOU AND THEN THEY WERE IN THE PENALTY P HASE. THEY HAD ALL OF THE IMONY. I BELIEVE THEY TOOK A LUN CH RECESS AT WHICH POI NT I N TIME THE S TATE T ALKED WITH THE DEFENSE ATTORNEY.

THE JURY WAS O UT , RIGHT ?

THE JURY WAS OUT A T LUNCH.

HAD THE Y B EE N I NSTR UC TE D?

NO, NOT Y ET .

HAD H EARD W HATEVER THEY WERE GOING TO HEAR BUT THE Y HAD NOT Y ET BEEN I NSTR UCTED?

THEY WERE ON THE LUNCH BREAK AND THEY B ROUGHT IT U P BRIEFLY WITH THE JUDGE AND HE HAD A QUE STION A S T O T HE LEG ALITY OF HIM WAI VI NG H IS APPELLATE RIGHTS A ND %% --ppADMITTING GUILT AFTER H E H AD ALREADY BEE N A DJ UD IC ATED GUILTY SO HE SAID FOR T HE M TO GO RESEARCH I T AND THE N THEY CAME BACK AFTER THE LUNCH BREAK A ND HAD M OR E DISCUSSION AND IT W AS A T %% --ppT HAT TIME THAT THE S TA TE W ITHDREW THE PLEA DEA L A T THAT TIME , B UT T HE COM ME NT S , EVEN JUST READI NG THE C OL D RECORD AND THEY STILL HAVE YET T O P OI NT T O ANY SPECIFICS WHERE THE JUDGE HAS SAID ANY TH IN G W HI CH SHOWS ANY K IND OF B IA S O R %% --ppPREDISPOSITION TO IMP OS E T HE DEATH PENALTY IN THIS CASE AND THEY WERE GRANTED A N OPPORTUNITY AT THE EVI DENTIARY HEARING TO INTRODUCE EVIDENCE ON THIS.

I THINK I GOT WHERE YOU WERE CONFUSED, BECAUSE THE ISSUE OF WHE TH ER J UDGE P ER RY COULD SIT IN HEARING T HE CLAIM OF INEFFEC TIVE ASSISTANCE WOULD BE THE ISSUE OF WHETHER THERE WAS A TIMELY MOTION T O REC US E , BUT %% --ppIF WE EST AB LI SH O N ITS FAC E IT HAD NO M ER ITS THE N THE %% --ppINEFFECTIVE ASSISTANCE, HE WOULD H AVE SAT ON T HE INEFFECTIVE ASSISTANCE. THAT GOES AWAY BECAUSE W E DON'T HAVE TO R EA CH A NYTH IN G ABOUT T HAT.

I'M S TI LL --

I THINK I FIG UR ED I T O UT .

OKAY. WE'LL SEE. IN OTHER WORDS, THE MOTION WAS UNT IM EL Y .

RIGHT.

THE ONLY THING W E N EED T O DETERMINE AFTER FIN DING THE MOTION WAS U NT IMEL Y I S THA T -- IS WHETHER THE T RIAL COUNSEL WAS I NEFFEC TI VE I N FAILING TO MOVE T O %% --ppDISQUALIFY?

RIGHT.

AND THAT IF WE S HOW T HAT THERE WAS N O LEGAL M ER IT T O IT TO B EGIN WITH W E DON 'T GET INTO WHETHER THERE WAS ACTUAL BIA S.

RIGHT.

AND THE FAC TS A RE V ER Y SIMILAR TO THAT CASE I MENTIONED, AND I WOULD U RG E THIS COURT TO LOOK AT T HA T AND FIND IT IS VERY S IM ILAR IN THA T R EGAR D. SIN CE C OUNSEL D ID N' T D IS CUSS ANY OF THE OTHER ISSUE S I WILL RELY O N MY B RI EFS F OR T HOSE ISSUES IF T HERE A RE N O FURTHER QUESTIONS.

THANK YOU.

THANK YOU.

JUST ON THE TIM ELIN ES S , AND I T W AS N EV ER -- I N T HE DENIAL OF OUR M OTIO N T O DISQUALIFY, IT WAS NEVER FOUND TO BE U NT IMEL Y A ND I BELIEVE IT WOULD HAVE BEE N FILED WITHIN TEN DAY S OF WHEN THE N EE D T O DISQU ALIFICATION FROM P OS T CONVICTION AROSE.

WHEN WAS T HE FIR ST T IME THAT YOU KNEW THAT J UD GE PERRY WAS GOING T O SIT ON THE POS T C ONVI CTIO N MOTION?

WELL , JUDGE PER RY , I F THERE WAS A DIFFERENT T IME FRAME IT WAS B ECAUSE T HERE WAS A SIG N -- I T W AS ASS IGNED TO A DIFFE RE NT JUDGE.

WHEN WAS THE FIRST TIME THAT YOU KNEW THAT JUDGE PERRY WAS THE FIRST ONE ASSIGNED TO THIS C LAIM?

WHEN WE F OUND THA T J UDGE PERRY WAS ASSIGNED T O I T KNOWING THE TEN-DAY RUL E W E FILED THE M OTION TO DISQUALIFY AS SOON AS W E HEARD THAT JUDGE PERRY W AS SITTING ON IT.

MY QUESTION WAS W HEN DID YOU FIND OUT?

I DON'T HAVE THE DATE.

WASN'T IT IN SEPTEMBER OF 2001 WHEN JUDGE PER RY D ISMISSED THE INI TI AL P OST CONVICTION MOTION.WEREN'T YOU PUT ON N OTIC E A T THAT TIME?

AT THAT T IM E I 'M N OT SURE.

WHY SHOULDN'T YOU MOVE T O RECUS E WITHIN TEN DAY S O F JUDGE P ERRY SIGNING T HA T ORDER?

WE H AVEN'T, I N FACT , RAISED THE ISSUE O F J UD ICIA L BIAS AT THA T P OI NT . IT IS AN ISS UE WHE RE T HE COURT WOULD HAVE TO RULE ON WHETHER THAT WOULD HAV E GIVEN REASON T O D ISQU AL IF Y TO A REASONABL E ATTORNEY. THAT WASN'T UNTIL W E ACTUALLY FILED T HE S WO RN 3.851 MOTION.

WEREN'T YOU P UT O N N OT IC E THAT THE SAME J UDGE W HO %% --ppPRESIDED OVER THE TRIAL A ND W HO R AI SED T HE SE CON CERN S WAS THE JUDGE WHO WAS NOW GOING TO HEAR T HE POS T C ONVICTION MOTION WHEN THE JUDGE SIGNED THE I NITI AL ORDER DISMISSING T HE POST CONVICTION MOTION?

THE REASON FOR MOV IN G T O QUALIFY JUDGE PERRY WAS AFF AIR WE F IL ED A POS T C ONVICTION MOTIO N . JUDGE PERRY, T HE WAY THE CLAIM W AS WORDE D , JUD GE PER RY WAS NEEDED TO BE A WITNESS OR VERY WELL COULD HAVE BEEN A WITNESS AND JUDGE PERRY WAS GOING T O PRESIDE OVER THE CAS E. UNTIL WE A CT UALL Y W EN T AND F ILED -- D ETER MI NED THAT THAT WAS THE PROPER I SS UE FOR M R. M AN SFIELD AND F IL ED THE MOTION ON THA T , T HE T IM E - - THE TEN D AY S H AD N' T S TARTED T ICKING AT THA T POINT .

DOESN'T S AS Y CON TRADIC T WHAT YOU ARE SAYING ABOUT WHEN YOU H AVE T O R EM OVE T HE JUDGE AND IMPOSE C ON VI CTION?

I'M NOT C ERTAIN ON T HA T BUT I BELIEVE T HE S TATE HAS THE POSITION THAT IT WAS %% --ppUNTIMELY BECAUSE IT SHOULD HAVE BEEN MOVED WITHI N TEN DAYS FROM WHEN THE EVE NT S OCCURRED THAT GAVE RIS E T O IT AND THAT WOULD HAVE B EE N WHEN THE COURT ACT UALLY S AID THAT, AND THE P OINT I S. > > THA T' S W HA T YOU A RE SAYING THAT T HE A TT OR NE Y I S INEFFECTIVE?

FOR NOT DOING IT.

AS FAR AS WIN O N P OS T CONVICTION YOU HAVE TO FIRST MOVE TO R ECUS E A J UD GE . %% --ppASAY DOES SPEAK T O THAT , DOESN'T IT?

I'M UNSURE OF THAT , BUT I BELIEVE REGAR DLESS O F WHETHER THE MOTION , MR. MANSFIELD THEN P OST CONVICTION IS STILL ENTITLED TO A FUL L A ND FAI R EVI DENTIARY HEARING AND HE WAS DENIED THA T B ECAUSE H E COULDN'T CALL A WITNESS THAT WAS NEEDED I N H IS C AS E A ND WE BELIEVE THAT THAT B IA S A ND P REJUDICE IN F AVOR O F THE STATE C ON TINUED ON.

BUT YOU DO AGREE THAT I F WE LOOK AT THESE C OMMENT S O N THE COLD RECORD A ND D O N OT AGREE THAT THERE WOULD HAV E BEEN A LEG AL LY SUF FI CI EN T BASIS FOR R EC US AL T HE N EVERYTHING YOU ARE ARGUING ON THIS ONE POI NT FAI LS ?

W E WOU LD DIS AGREE WITH THAT, BUT THE POINT I S , A ND I W OULD JUST L IKE T O P OINT OUT THAT AT THE TIME --

W HA T PAR T D O Y OU DIS AG RE E WITH? IN OTHER WORDS, IF W E D EC ID E THAT EVEN IF IT HAD BEE N TIMELY RAISED, T HE RE WAS N O MERIT TO THE REC USAL THE N YOU R C LAIM G OES O UT THE WINDOW?

WELL, IT W ASN' T LIKE THE COURT WOULDN'T HAVE B EEN A BLE TO WHEN THE C OM MENT S WERE MADE TO GET INTO THE TRUTH OR THE FAL SI TY O R W HAT WAS INTENDED BY THAT. THEY WOULD HAVE TO TAKE I T B Y F ACE VALUE S O L EG AL S UFSY .

AND IF W E DEC ID ED I T WASN'T HAVE B EE N L EGAL LY SUFFICIENT BY OUR CAS E L AW THEN YOU HAVE N O BASIS FOR ARGUING AN I NE FF ECTI VE A SSISTANCE CLAIM, CORRECT?

YOUR HONOR, IF YOU DO THAT YOU ARE NOT GOING T O FIND THE ESSENCE OF O UR CLAIM IS YOU ARE NOT GOING TO FIND THA T T RIAL COU NS EL WAS I NE FFEC TIVE F OR F AILI NG TO R ECUS E. I SEE THAT I A M OUT O F TIM E. THERE ARE A NUMBER OF I SS UE S AND WE JUST ASK THIS C OU RT TO REVERSE.

THANK Y OU V ER Y M UC H . BOTH COUNS EL.